Despite being a much debated topic and increasingly clarified by the information media, some important aspects regarding sexual harassment from a labor legal point of view are still misunderstood.
Thus, it is necessary to clarify some basic concepts about this issue so important for employees and employers.
MYTH 1: THE CONFIGURATION OF SEXUAL HARASSMENT AT WORK REQUIRES EMPLOYMENT OF VIOLENCE.
Judge Ivete Ribeiro, of the Regional Labor Court of the 2nd Region, explains that "sexual harassment at work is characterized by behavior or revelation, by words, gestures or actions, of a sexual nature, not intended by the person who is intended and that the person is offensive, creating a barrier to the healthy development of the work environment".
In the sphere of labor, two types of sexual harassment are admitted, neither of which requires the use of violence in place. They are:
- Sexual harassment by blackmail: illegitimate use of hierarchical power to demand benefits of "sexual favors", under the threat of some injury or promise of some benefit. It is illegal practice regardless of the victim's refusal.
- Sexual harassment by intimidation: incitedness, requests or manifestations of sexual, verbal or physical nature, unwanted by the victim, in order to create an offensive or hostile situation, harming the work environment.
As it turns out, the presence of any violent conduct by the agent is not required to characterize sexual harassment. So much so that he often believes he is praising or pleasing the victim. This, however, does not change the configuration of the fact in the eyes of Labor Law.
MYTH 2: ONLY WOMEN CAN BE VICTIMS OF SEXUAL HARASSMENT.
Some believe that only women can suffer sexual harassment at work. However, it is currently common place that anyone can be the victim of sexual harassment, regardless of their gender or any other personal condition. Likewise, anyone can be a harasser or a harasser, and there is no limitation on this.
The mistaken belief that sexual harassment victimizes only women, however, has deep roots.
Data from the International Labour Organization (ILO) show that 52% (fifty-two percent) of economically active women have already been sexually harassed, which is a reality that is very common among female workers.
In addition, professions that are most at risk of sexual harassment are primarily performed by women. Sonia Mascaro Nascimento, author of the books "Sexual Harassment" and "Women's Work: from prohibitions to promotional law", points out that maids and secretaries tend to suffer more this type of harassment, because in general they carry out their activities in a more solitary way and in more private environments.
Another factor that may have contributed to the sense that only women can be sexually harassed is the fact that until very recently criminal law defined that only women could be raped, which changed only with the advent of Law No. 12,015 of 2009.
3RD MYTH: SEXUAL HARASSMENT, FOR LABOR PURPOSES, ONLY EXISTS WHEN THERE IS HIERARCHY BETWEEN THE HARASSER AND THE HARASSED.
The statement that, for labor purposes, sexual harassment is only configured when it occurs vertically upwards, that is, when the victim is harassed by his boss, is not true.
Both doctrine and jurisprudence admit that sexual harassment, for labor purposes, can be vertical ascending (from boss to subordinate), vertical descending (from subordinate to boss), horizontal (when there is no hierarchy between harassing and harassing), or even collective (when there are multiple harassers and/or multiple victims).
This requirement applies only to the configuration of the crime of sexual harassment, typified art. 216-A of the Penal Code, because it is necessary that the agent prevails in "his condition as superior hierarchy or ancestry inherent in the exercise of employment, position or function".
That is, criminally, it is necessary that the victim be subordinated to the harasser or harasser, but this is not reflected in the labor sphere.
4TH MYTH: SEXUAL HARASSMENT, UNDER THE LABOR ASPECT, ALWAYS CONFIGURES CRIME.
The configuration of the crime of sexual harassment is not confused with the institute of the same name in the labor field. This means that someone who has committed sexual harassment against a co-worker, recognized by a Labor Judge, may not be convicted or even criminally prosecuted for this fact.
As already seen, the crime of sexual harassment, typified in art. 216-A of the Penal Code, requires characteristics not always required in the labor field.
This does not mean, however, that conduct known as sexual harassment for labor purposes cannot constitute crimes other than that of the same name, provided for in Art. 216-A of the Penal Code. Depending on the situation, one may face, for example, the crimes of illegal embarrassment (art. 146 of the Penal Code), threat (art. 147 of the same diploma), or even rape (art. 213 of that criminal law). It is also possible that the conduct in question is not configured as a crime (atypical conduct).